Tolerance and Diversity Institute

TDI's Assessment on Restriction of Freedom of Religion in the Constitution of Georgia

On spring session of 2017 the Parliament of Georgia adopted the draft amendments to the Constitution by second hearing [1] that was drafted by the State Constitution Commission of Georgia. The amendments prepared within the framework of Constitutional reform affected the provisions of freedom of religion.

The Venice Commission issued its opinion on Constitutional amendments on June 19, 2017 and urged the state to amend number of constitutional provisions. The Commission also assessed the contents of the provision on freedom of religion.

TDI drew attention on several significant issues before the Constitutional amendments were adopted by second hearing, namely:

The provision on freedom of belief and religion was weakened with initial project of constitutional amendments;

Position of dominant religious organization was reinforced;

Risks of deterioration of standards of protection of freedom of religion and secularity have emerged.[2]

Expanding scopes of restriction of freedom of religion

According to the current edition of the Constitution, the restriction of freedom of speech, thought, conscience, religion and belief shall be impermissible unless their manifestation infringes upon the rights of others.

Venice Commission expressed its opinion on restriction scopes before the second hearing of the Constitutional amendments in Parliament. According to the Commission the scopes of the existing restrictions emerges the risk of interpretation of belief and religion too narrowly when observing the adequate balance between protecting the rights and other interests; and violation of “rights of others”, on the contrary, too broadly.

Within the frameworks of the second hearing based on the Recommendations of the Venice Commission, the Parliament of Georgia formulated the presented provision the following way:

“These rights shall be restricted only in accordance with the law, with purpose of ensuring state or public security, preventing crime, healthcare, and administration of justice or protection of rights of others that is inevitable for democratic society.”[3]

TDI considers that the State has not limited the scopes of restriction of freedom of religion with this provision, but on the contrary - has broadened, that contradicts the recommendations of the Venice Commission as well as the norms of the Convention of Human Rights and fundamental freedoms.

The provision on restrictions in the draft amendments to the Constitution weakens the standards of protection of freedom of belief, religion and conscience. Before the Constitution of Georgia provided for restriction of the mentioned rights only to “protect the rights of others”. After the amendments the new grounds were added.

Before the presented provision was drafted, the Chairman of the Parliament of Georgia, Irakli Kobakhidze had noted that the current edition of the Constitution of Georgia provides for the high standards of guarantees for the freedom of religion and the grounds for restrictions under Venice Commission recommendation should be specified.[4]

It is significant that the Venice Commission discussed the fact that the scopes of restriction of the current edition (“to protect the rights of others”) gives an opportunity to interpret the presented provision broadly. It is clear that the goal of the recommendation on specifying the mentioned provision is to strengthen the standard of the freedom of religion, not weakening.

In light of Parliamentary hearings, the new provision in the draft of Constitutional amendments did not specify the grounds for restriction but on the contrary - broadened, that contradicted to Venice Commission recommendations. Additionally, the grounds were broadened to the point that exceeded the scopes of restriction (freedom of religion) provided with in Article 9 of the European Convention on Human Rights.

TDI considers that the current scopes of restriction of freedom of religion (“to protect the rights of others”) establishes the higher standard of protection of rights than offered edition that creates the risks of interference with the sphere of freedom of religion.

The provision formulated in the Draft Constitution regarding restriction of freedom of religion is structurally similar to provision stipulated in Article 9.2 of the Human Rights European Convention regarding restriction of the freedom of religion. However it does not concur with essential part of the Convention. Legitimate goals of restriction presented in the Draft Constitution goes beyond the list of grounds for restriction provided for in the European Convention on Human Rights. E.g. state security, prevention of crime, administration of justice are not the grounds for restriction provided for with Article 9 of the Convention.

For example, the European Court of Human Rights finds it inadmissible to restrict freedom of religion on the grounds of “State security”. The mentioned approach is considered by the court as a starting point of democratic society [5]. Additionally, it should be pointed out that the European Convention on Human Rights considers restriction of right to fair trial, right to respect private and family life, freedom of assembly and association and freedom of movement on the grounds of state security – admissible and excludes restriction of freedom of religion from the mentioned grounds.

Additionally, part 3 of the Article 16 provided for in the Draft Constitution (on restriction of right) mismatches the approaches of the Constitutional Court of Georgia regarding freedom of religion.

According to the Constitutional Court of Georgia, the grounds for restriction of freedom of religion (“to protect the rights of others”) provided for in the current edition is additional guarantee to protect the subject, as the Constitution limits the possibility of restricting the rights to the necessity of protecting the rights of others.[6] Additionally, this concerns only forum externum and as regards to forum internum, it is of an absolute nature and shall not be restricted.

The Constitutional Court of Georgia admits that the freedom of religion falls under the category of rights restriction of which in order to achieve state security or other publicly significant goals is prohibited.[7]

Constitutional and parliamentary discussion of 2017 makes us consider that the new formulation is aimed at providing broader grounds for unlawful interference and restrictions in the sphere protected by the freedom of religion.

Clear examples were revealed in the revision process of the Constitution, when the representatives of different brunches of the government expressed the attitude towards religions organizations that is incompatible with constitutional principles and secularity standards [8] and that creates the expectation that with paragraph 3 of Article 16 of the Draft Constitution of Georgia (grounds for restriction) the State may interfere with the freedom of religion.

The risks are increased by xenophobic statements of the public servants. The same can be thought based on the discussions within the frameworks of Constitutional revision. E.g. according to the Chair of Defense and Security Committee, Irakli Sesiashvili, the new provisions regarding restriction of freedom of religion will allow us to restrict religious organizations that “do not consider your State as a state and consider it as a part of their State”. Irakli Sesiashvili stated that he is against registering the mentioned organizations and linked the new provision of restricting freedom of religion presented in the draft of Constitutional amendments to the mentioned.[9] Additionally, the opinion of the Chairman of the Parliament of Georgia, Irakli Kobakhidze, regarding the necessity of weakening the standard of freedom of belief, requires considering.[10]

The recent approaches of the executive authorities regarding restriction of the freedom of religion should also be pointed out. In the Strategy for the Development of Religious Policy of the State 2015 religious/ethnic groups living near the borderline regions are discussed in the prism of security: “the mentioned condition sets special geopolitical tasks to the State of Georgia: to avoid the efforts of the countries of the neighboring regions to fix its interests in the internal policy of Georgia using ethnic and religious diversity of the population of Georgia.”

Considering the mentioned approaches of the State, indication of state security and other circumstances as grounds for restricting freedom of religion that may go beyond the scopes of the human rights, creates high risk of incomparable intervention with the sphere protected with this right.

Restoring “freedom of religion” in the Constitution

Based on the draft of the State Constitutional Commission the word “religion” was removed from Article 19 of the current edition of the Constitution (Article 16 of the draft amendments). The proposed provision provides for freedom of belief and conscience. The mentioned was critically assessed by the State Defender, NGOs and the Venice Commission. As a result the Parliament of Georgia considered the recommendations regarding removal of the wording “freedom of religion” from the Draft Constitution and restored the mentioned words with the draft adopted by second hearing.

According to the Venice Commission, freedom of religion is one of the fundamental rights that is recognized with human rights acts and majority of the Constitutions of the European states. The freedom of religion is general right that includes numerous components. Accordingly, the provision regarding freedom of religion in the Article 16 of the draft of Constitutional amendments could reveal the guarantees of the mentioned right more clearly.

Attitude of TDI was the same in this regard and was submitted in written form to the Venice Commission together with other human rights organizations.[12] TDI considers that removal of the wording “freedom of religion” from the Article 19 of the Constitution will weaken constitutional guarantees of the freedom of religion.

In the conclusion restoring “freedom of religion” with Article 16, within the frameworks of the second hearing of the Draft Constitution, should be assessed positively.

Restriction of freedom of religion with the role of the Orthodox Church

The parliament of Georgia did not consider remarks of NGOs and public defender regarding Article 8 of the Draft Constitution that unlike the current provision considers freedom of belief and special role of the Orthodox Church equal.[13]

Article 9 of the current edition is divided into two parts before the Constitutional amendments enter into force: the article starts with declaring “complete freedom” of belief and religion. The second part is completed with recognition of special role of the Orthodox Church in the history of Georgia and with the statement regarding the independence of the church from the state.

Following the Constitutional amendments the structure of the norm will be amended. According to the draft Constitution: “together with freedom of belief and religion the State recognizes the especial role of the Apostolic Autocephalous Orthodox Church of Georgia [...]”

The provision of the current edition recognizes separately: a. freedom of religion; b. special role of the Orthodox Church in the history and independence of the State.

New provision of the Draft Constitution reads differently. It creates the grounds for the assumption that the State restricted freedom of belief and religion through recognizing the role of the Orthodox Church that is a step towards deterioration of the standards in terms of rights.

TDI provides number of remarks regarding the newly formulated provision on restriction of the freedom of religion:

“Specifying” formulation regarding restriction of freedom of religion provided for in the paragraph 2, Article 16 of the Draft Constitution should be assessed negatively. The State has broadened the scopes of restriction of freedom of religion instead of narrowing it; this provision on the Draft Constitution creates the risks of interference with freedom of religion on broader grounds;

Article 8 of the Draft Constitution, according to which freedom of belief and special role of the Orthodox Church are considered equally, should be assessed negatively. It creates the grounds for the assumption that the State restricted freedom of belief and religion through recognizingthe role of the Orthodox Church that is a step towards deterioration of the standards in terms of rights;

Taking into consideration the recommendations of the Venice Commission, NGOs and Public Defender regarding sustaining “freedom of religion” in the Article 19 of the Constitution should be assessed as positive step made by the State.

We urge the State to observe adequate balance between two interests, consider only protection of rights of others guaranteed with the Constitution and international norms as the grounds for restricting freedom of belief, conscience and religion and not to create threats of restriction of freedom of religion disproportionally with newly developed legitimate reasons that cannot meet necessity requirements and will interfere with sphere protected by paragraph 1 of the Article 19 of the Constitution (part 1 of the Article 16 of the Draft Constitution).

[13]Current: The relations between the state of Georgia and the Apostle Autocephalous Orthodox Church of Georgia shall be determined by the Constitutional Agreement. The Constitutional Agreement shall completely correspond to universally recognized principles and norms of international law, in particular, in the field of human rights and fundamental freedoms (p. 2, Article 9).

Presented amendment: together with freedom of belief and religion the State recognizes the especial role of the Apostolic Autocephalous Orthodox Church of Georgia in history and its separation from the State. The relations between the State of Georgia and the Apostolic Autocephalous Orthodox Church is regulated with Constitutional Agreement that should be in line with universally recognized principles and norms of the International Law. (Article 8.)